Citation Nr: 0406812
Decision Date: 03/16/04 Archive Date: 03/30/04
DOCKET NO. 02-12 010 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUES
1. Entitlement to an increased rating for paranoid
schizophrenia and post-traumatic stress disorder (PTSD),
currently evaluated as 50 percent disabling.
2. Entitlement to a total disability rating based upon
individual unemployability (TDIU).
3. Entitlement to special monthly compensation based on the
need for aid and attendance or based on being housebound.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and spouse
ATTORNEY FOR THE BOARD
G. Jivens-McRae, Counsel
INTRODUCTION
The veteran served on active duty from August 1967 to
December 1968.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a November 2001 rating decision of the
Montgomery, Alabama, Department of Veterans Affairs (VA)
Regional Office (RO), which granted service connection for
PTSD, which was included with the 50 percent evaluation
already established for paranoid schizophrenia. Entitlement
to TDIU and special monthly compensation was denied. The
veteran disagreed with those denials and the rating for the
mental disorder in March 2002. A substantive appeal was
received by VA in August 2002, and the current appeal ensued.
The issues of entitlement to an increased rating for paranoid
schizophrenia and PTSD and entitlement to TDIU are addressed
in the remand attached to this decision.
FINDING OF FACT
On March 4, 2003, at his personal hearing before the
undersigned, prior to the promulgation of a decision in the
appeal, the Board received notification from the appellant
that a withdrawal of the appeal on the issue of entitlement
to special monthly compensation was requested.
CONCLUSION OF LAW
The criteria for withdrawal of the substantive appeal on the
issue of entitlement to special monthly compensation by the
appellant have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5)
(West 2002); 38 C.F.R. §§ 20.202, 20.204 (2003).
REASONS AND BASES FOR FINDING AND CONCLUSION
Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal
which fails to allege specific error of fact or law in the
determination being appealed. A Substantive Appeal may be
withdrawn in writing at any time before the Board promulgates
a decision. 38 C.F.R. § 20.202 (2003). Withdrawal may be
made by the appellant or by his authorized representative.
38 C.F.R. § 20.204 (2003). The appellant at his personal
hearing before the undersigned withdrew his appeal on the
issue of entitlement to special monthly compensation. A
withdrawal of an appeal on the record at a personal hearing
before the Board constitutes a withdraw in writing by the
appellant. Hence, there remain no allegations of errors of
fact or law for appellate consideration on that issue.
Accordingly, the Board does not have jurisdiction to review
that appeal and it is dismissed.
ORDER
The appeal on the issue of entitlement to special monthly
compensation based on the need for aid and attendance or
based on being housebound is dismissed because it has been
withdrawn by the veteran.
REMAND
The issues of entitlement to an increased rating for paranoid
schizophrenia and PTSD and entitlement to TDIU are remanded
to the RO via the Appeals Management Center (AMC), in
Washington, D.C. VA will notify the veteran if further
action is required.
The veteran and his representative contend, in essence, that
the veteran's service-connected paranoid schizophrenia and
PTSD are more severe than the current evaluation reflects.
The veteran also asserts that he is unable to obtain or
maintain employment as a result of his service-connected
disability.
The veteran testified during his March 2003 that he received
treatment for his psychiatric disability from the VA Medical
Centers in Montgomery and Tuskegee, Alabama. He stated that
he was last seen for his service-connected psychiatric
disability in October 2002. That VA examination report is
not of record in the claims folder. Additionally, since his
wife claims that the veteran's paranoid schizophrenia and
PTSD have worsened in the last couple of years, a thorough
and contemporaneous examination of the veteran which is
adequate for rating purposes should be performed. Green v.
Derwinski, 1 Vet. App. 121, 124 (1991). This is to ensure
that evaluation of a disability is a fully informed one.
Accordingly, the case is remanded for the following action:
1. Ensure that all notice and
development required by the applicable
laws and regulations has been done. The
veteran should be specifically informed
about any information and evidence not of
record that is necessary to substantiate
the claim; any information and evidence
that VA will seek to obtain; and any
information and evidence he is expected
to provide. The veteran should be also
asked to provide copies of all evidence
in his possession that pertains to the
claim.
2. Obtain the veteran's VA medical
records since May 2002, and associate
those records, if any, with the claims
folder.
3. Schedule the veteran for an
appropriate VA psychiatric examination to
assess the severity of his service-
connected paranoid schizophrenia and
PTSD. The claims folder and a copy of
this remand are to be made available to
the examiner, and the examiner is asked
to indicate in the examination report
that he or she has reviewed the claims
folder. All necessary testing should be
done, if any, and the examiner should be
asked to indicate whether the veteran's
paranoid schizophrenia and PTSD is
productive of suicidal ideation; speech
that is intermittently illogical,
obscure, or irrelevant; obsessional
rituals which interfere with routine
activities; near continuous panic or
depression; impaired impulse control;
spatial disorientation; neglect of
personal appearance or hygiene;
difficulty adapting to stressful
circumstances(including work or worklike
setting), inability to establish and
maintain effective relationships; gross
impairment in thought processes or
communication; persistent delusions or
hallucinations; grossly inappropriate
behavior; persistent danger of hurting
himself or others; intermittent inability
to perform activities of daily living
(including maintenance of minimal
personal hygiene); disorientation to time
or place; or memory loss for names of
close relatives, his own occupation, or
his own name. The examiner should
provide a multi-axial diagnosis, to
include assignment of a Global Assessment
of Functioning (GAF) scale score, and an
explanation of what the score means. In
addition, the examiner should render an
opinion as to whether the veteran is
unable to obtain or retain substantially
gainful employment due solely to his
service-connected paranoid schizophrenia
and PTSD.
4. Thereafter, readjudicate the claims.
If the benefits sought on appeal remain
denied, prepare a supplemental statement
of the case and send it to the veteran.
Also provide an appropriate period of
time to respond.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs
to provide expeditious handling of all cases that have been
remanded by the Board and the Court. See M21-1, Part IV,
paras. 8.43 and 38.02.
_________________________________________________
HARVEY P. ROBERTS
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2002).